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After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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College Admin Loses First Amendment Appeal

You may remember the case of Crystal Dixon, a human resources administrator at the University of Toledo who was fired for writing an anti-gay op-ed column for a local newspaper. She filed a First Amendment lawsuit, lost at the district court level and now the 6th Circuit Court of Appeals has upheld that ruling. You can read the full ruling here.

A three-judge panel of the Cincinnati-based 6th U.S. District Court of Appeals upheld a lower court’s ruling that dismissed a lawsuit filed by Crystal Dixon against the university and its leaders.

In her lawsuit, Dixon argued that her firing over the April 2008 op-ed in the Toledo Free Press that she wrote was a violation of her free speech rights, because she wrote it as a private citizen, not on behalf of the university.

The panel rejected that argument, saying that her public comments went against the very policies that the university wanted her to create and enforce as the associate vice president for human resources, and that the speech wasn’t protected.

In the op-ed, Dixon wrote that as a black woman, she takes “great umbrage” at comparisons between gay rights and civil rights because gay people can choose a different lifestyle, while black people cannot change their skin color.

This is not an open and shut case. As a general rule, I favor maximum free speech rights in such cases. But the nature of her role in administering the university’s anti-discrimination policies makes this a unique situation. How could they trust her to enforce those rules objectively when she has publicly said she does not believe they are valid?

Suppose there was some medication that could be given once to permanently flip someone’s orientation from homosexual to heterosexual. Would she consider it acceptable for society to expect all homosexuals to take the injection, and live a fully “normal” life as heterosexuals?

Contrariwise, suppose there was some injection that could be given once to permanently flip someone’s skin color from white to black. Would she consider it acceptable for society to expect all blacks to take the injection, and live a fully “normal” life as whites?

What about firing the incompetent idiot that hired her for a totally unsuitable position given her innate bigotry!
Were there no questions asked as to her opinion or views on the task she was given…did she lie then?
If she told the hirer that she was anti-gay…why was she hired?

I don’t agree with this at all. At all. This, despite the fact I don’t agree with what she said at all either. But, free speech exists in the most extreme cases or it doesn’t exist at all. Note there is no ACTUAL evidence on the record that she actually did not implement or hindered implementation of the U of T’s policy.

Granted, this is a matter of public policy but not, strictly speaking, of law. Still it’s only one tiny step from firing government employees for stating political views which go against the accepted (meaning, approved by the powerful political class) current. Are we going to fire police officers and police chiefs if they voice opposition to marijuana laws? On the basis, that maybe (without ANY evidence they are actually doing so) they will fail to enforce those laws?

The threat of being fired is indeed quite a “chilling effect” on the exercise of one’s free speech rights.

@7: Right, so I’m sure you’ll accept women being fired for advocating for pay equity, union members being fired for union activity, and African-Americans being fired for protesting against discrimination. And government employees being fired for advocating for the “wrong” (meaning, the one that lost the last election) political party. Oh, that’s different, you say? Then you advocate “viewpoint discrimination” which is the very antithesis of FREE speech.

@Neuroguy: I think the problem isn’t so much that she said what she did; it’s her position. She is responsible for administering anti-discrimination policies. This might be a problem when she has stated her biases upfront. On that, however, if it were me, I would not have fired her. I would have counseled her that this cannot carry over into the performance of her duties. The first time she refuses to protect the rights of someone who is LGBT, out she goes. For not doing her job, not for her speech. I doubt they’d need to wait long.

Not equivalent – what would be equivalent would be the head of HR being fired because they opposed pay equality.

union members being fired for union activity,

Again, not equivalent. It would be the head of a union being replaced for crossing union picket lines.

and African-Americans being fired for protesting against discrimination.

Nope, it would be not hiring a Neo-Nazi to head the NAACP. The law actually can make a determination between espousing discriminatory and non-discriminatory viewpoints, especially when you will be going into a position where those are real, present, everyday issue you’ll be dealing with.

And government employees being fired for advocating for the “wrong” (meaning, the one that lost the last election) political party.

Um, that does happen. I strongly suspect Bush and Obama had different Chiefs of Staff, for example. Pretty much sure they did, actually. Would you support a Chief of Staff insisting they retain the (government employee) post through a change in Presidency?

Oh, that’s different, you say? Then you advocate “viewpoint discrimination” which is the very antithesis of FREE speech.

It is different, as has been shown above. Not all viewpoints are equally valid under the law.

Neuroguy: Let me throw out another (and better fitting)–suppose a police officer were an outspoken MRA (Men’s Rights’ Advocate)? Such individuals routinely overstate the percentage of false rape claims, engage in rampant victim-blaming, and reflexively side with men in domestic violence situations.

How can you expect women, then, to feel comfortable enough to approach him with a complaint about an abusive spouse, or a sexual assault report? And should such an individual be placed in charge of a unit that directly deals with rape victims?

Likewise, by making a public statement against gay rights, she created an environment that was inherently hostile to a segment of the people that she was hired to assist. This is a major problem.

anubisprime (#4) –“What about firing the incompetent idiot that hired her for a totally unsuitable position given her innate bigotry!” [ emphasis mine]

Ah – not innate bigotry*, but learnt bigotry.

Dingo
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* if bigotry could be proved to be innate then it could be argued that bigotry couldn’t be helped, and therefore shouldn’t be discriminated against, making a protected class. Current data suggests (such as it is) that while the basis for bigotry may have it’s roots in brain development, bigotry itself is a largely learned behaviour.

Look everyone, I’m 100% in agreement with the ACLU that the antidote to bad speech is more speech. ONLY when there is ACTION involved should it be met with action.

@10: No, they don’t. Or they can, but they won’t survive summary judgment, at least not in states (most of them) which adhere to “at-will” employment. (I am referring to them politically advocating in a general sense, not in particular at their workplace, where they would have a claim).

@11: That’s exactly what I’m saying should be done.

@12: “The law actually can make a determination between espousing discriminatory and non-discriminatory viewpoints”. “Not all viewpoints are equally valid under the law”. NO. This is the very IDEA of the First Amendment. You seem unable to distinguish between merely having and stating a viewpoint, versus ACTING in a manner against that viewpoint. “I strongly suspect Bush and Obama had different Chiefs of Staff, for example. Pretty much sure they did, actually. Would you support a Chief of Staff insisting they retain the (government employee) post through a change in Presidency?” No, because I strongly suspect the Chiefs of Staff have employment contracts that are only valid through the current Presidency.

@14: You’re begging the question. To show you why, let me (hypothetically) claim this. Suppose a family court judge were an outspoken feminist. Such judges routinely accept claims of abuse by women and administer TROs without corroborating proof, and reflexively side with women in custody/support/alimony determinations. How can you expect men, therefore, to expect fair treatment in court? Should such an individual be placed in a position DIRECTLY making these determinations? Ah, but such judges don’t really, you say? You don’t see why you want YOUR speech to be legally favored over
someone else’s? No, you simply cannot DEMAND that others accept YOUR point of view about the percentage of false rape cases, or likelihood of what party is at fault in domestic violence cases, under penalty of losing their job. This will come back to bite you when people that agree with you are fired for espousing THEIR views. What you CAN demand is that those individuals perform their duties professionally, impartially, and competently. WHEN you have evidence they are not doing such, THEN you can fire them. NOT before, merely for having the “wrong” (read, doesn’t agree with you) opinion.

Her op-ed showed everyone that she was intellectually unqualified for her position.

@neuroguy
I don’t worry too much about the other direction as people like you start complaining about discrimination when judges, HR people etc. simply do their job (like not discriminating when hiring women, convicting abusers).

Could it be that you want to turn disagreement with facts into mere politics?

YOUR point of view about […] likelihood of what party is at fault in domestic violence cases, under penalty of losing their job

@17: “Won’t somebody please think of teh poor menz?” Who cares if innocent men get convicted and guilty women get off, right? Who cares if men are denied their rights? After all men, despite their being the privileged class, are in reality sub-human? Fuck you. FUCK YOU!!!

@18: In the realm of free speech rights, yes. Creationists have the absolute right to free speech despite what they are saying is false.

I think she is wrong about about discrimination against gays not being a matter of “civil rights” but I don’t think her remarks (alone) rise to the level of outright bigotry that should result in her termination.

Her remarks are pretty standard for fundamentalist Christians, Muslims and Jews. At what point does being fired for holding these beliefs become a violation of their constitutional rights?

That said, after reading her remarks if I were gay and were appealing to her office for help I doubt I would have much hope that my complaint would be handled fairly.

Lance did you miss this bit:
“The panel rejected that argument, saying that her public comments went against the very policies that the university wanted her to create and enforce as the associate vice president for human resources, and that the speech wasn’t protected” ?

First amendment rights aren’t really the issue here, as I see it. She has the perfect right to say whatever nonsense she likes*, however the University has the perfect right to fire her if they don’t think she is able or willing to carry out the functions that they are paying her to fulfill.
I’d imagine that would involve interacting, fully and frankly, with ‘the stakeholders’ to get some idea of their needs. But her outburst in the local paper would have a chilling effect on that process, don’t you think?
Dingo
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* She could have requested the paper withhold her name, thus avoiding the appearance of a conflict of interest